The New York Supreme Court, Appellate Division, Second Department in Schiano v Mijul, Inc., 2015 NY Slip Op 06910 [131 AD3d 1157], affirmed a trial court order for the imposition of sanctions for the failure to produce necessary documents in an action to recover damages for personal injuries.
The plaintiff was injured when he slipped and fell while walking in the parking lot of defendant’s premises in 2006. The plaintiff claims that he fell “due to the presence of a defective matter in maintaining the path.” The plaintiff also claimed that the defendants were reckless, careless, and negligent in failing to properly fix, repair, and maintain the area, which he walked upon. The plaintiff also argued that the defendants’ failure to maintain the area was a breach of their duty of reasonable owning, operating, and maintaining the area. As a result of the plaintiff’s fall, he claims to have suffered injuries and brought an action to recover damages for his injuries.
The defendants moved to dismiss the complaint for failure to state a claim. The defendants argue that they did not create the dangerous condition, which caused the plaintiff’s accident. The defendants further believed that there was insufficient evidence regarding their failure to properly maintain the premises and that they did not have actual or constructive knowledge of the dangerous condition.
In order to succeed on a motion seeking dismissal for failure to state a claim, the facts alleged in the complaint are accepted as true and give the plaintiff the benefit of every favorable inference. In a motion to dismiss for failure to state a claim, the court will not consider the merits of the case.
Plaintiff argued that he knew that he slipped on grease or oil after he had fallen. The Court found this claim coupled with the defendants’ failure to provide any records regarding cleaning procedures or practices was enough to deny defendant’s motion.
Thus the defendants’ motion was denied because the defendants failed to prove to the Court that they lacked constructive notice of the dangerous condition because they did not have any evidence regarding cleaning procedures. The Court also found that there were triable issues of fact regarding whether the Defendants created the condition and had actual or constructive knowledge of the condition which caused the plaintiff to fall.
In order to constitute constructive notice, a defect must be visible, obvious, and must exist for a sufficient length of time prior to the accident to allow the defendant’s employees to discover and fix the defect. The plaintiff’s evidence, consisting of his deposition testimony, testimony from the manager of the premises at issue and an affidavit from a co-worker of plaintiff both indicate that the liquid was observed in the subject area prior to the accident and defendants were aware of the grease accumulation in the area plaintiff slipped. This is sufficient to raise an issue of fact as to whether defendants had constructive notice of the condition and thereupon failed to take reasonable actions to remedy the condition.
The Court has the discretion to impose sanctions and determine the nature of sanctions. The deliberate and contumacious character of a party’s actions can be assumed from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time.
The defendants appealed the court order the imposition of sanctions. The Second Department held that the Supreme Court properly granted the plaintiff’s motion. The court found that the plaintiff demonstrated that the documents in question existed or were under the defendant’s control. The court further found that there was no reasonable explanation for the defendant’s failure to produce the documents in question.